The matter at hand

This matter concerns an opposition filed by Michelin against the registration by Continental Reifen Deutschland (“Continental”) of the figurative mark XKING for tyres and inner tubes for tyres, on the basis of an earlier French mark consisting of a stylized X, registered for inner tubes for pneumatic tyres.

The Opposition Division of EUIPO upheld the opposition, but that decision was reversed by the Board of Appeal. In the appeal brought by Michelin, the General Court annulled the Board of Appeal's decision, considering that the strong similarity of the goods concerned, the average degree of similarity between the marks and the normal degree of inherent distinctiveness of the earlier trade mark X, lead to a likelihood of confusion between the marks at issue. Continental subsequently lodged an appeal before the ECJ.

The judgment of the ECJ

The ECJ rules that the appeal lodged by Continental is partly founded, in that the General Court distorted the evidence by failing to acknowledge that brochures provided by Michelin showed that the stylised letter ‘x’ is used, in isolation or in combination with other letters, to designate a technical characteristic of Michelin tyres, namely their tread pattern. Consequently, the General Court based its assessment of the inherent distinctiveness of the earlier French trade mark on a distortion of the evidence and erred in law when it found that the earlier French trade mark had a normal degree of inherent distinctiveness. However, the ECJ recalls that it follows from its case-law “that an error in law by the General Court does not invalidate the judgment under appeal if the operative part of the judgment is shown to be well founded on other legal grounds” (paragraph 44). For that reason, the ECJ goes on to consider the other grounds of appeal, most of which are dismissed because they merely seek to challenge the factual assessments made by the General Court.

As to points of law, Continental argued that the General Court failed to take into consideration the general rule derived from the judgment of the ECJ in OHIM v BORCO-Marken-Import Matthiesen (C‑265/09 P) that a single letter of the alphabet, such as the letter 'x', constitutes a weakly distinctive element of a sign. The ECJ rejects this argument, considering that “although the Court did establish in that judgment that there are certain categories of signs, including single letters, which are less likely prima facie to have distinctive character initially, it did not, however, establish a general, abstract rule that the distinctiveness of such letters must, in all cases, be considered to be weak. On the contrary, the Court reaffirmed the obligation on trade mark authorities to carry out an examination of this matter based on the facts” (paragraph 73).

This leaves Continental’s argument that the General Court, due to its incorrect assessment of the distinctiveness of the earlier trade mark, erred in law by finding there to be a likelihood of confusion. In this respect, the ECJ holds that even though it is true that the General Court wrongly assessed the distinctive character of the earlier trade mark, “this is insufficient to cause the judgment under appeal to be set aside because the General Court could find that there was a likelihood of confusion between the marks at issue on the basis of other legal grounds” (paragraph 94). After all, “although the distinctive character of an earlier mark must be taken into account when assessing the likelihood of confusion globally, it is, however, only one factor among others involved in that assessment” (paragraph 98). In this connection, the ECJ states that “although it is true that the more distinctive the earlier mark the greater the likelihood of confusion will be, such a likelihood of confusion cannot, however, be precluded where the distinctive character of the earlier mark is weak” (paragraph 99). The General Court was therefore entitled to find that there was a likelihood of confusion between the marks at issue on account of the average similarity between the signs and the strong similarity between the goods covered. Consequently, the ECJ dismisses the appeal.